United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
EVANS BARKER, JUDGE.
reasons explained in this Entry, the defendants' motion
for summary judgment [dkt. 34] is granted.
plaintiff in this 42 U.S.C. § 1983 civil rights action
is Danny Cherry (“Mr. Cherry”). The defendants
are Corizon LLC (referred to as Corizon Health, Inc.)
(“Corizon”) and Dr. Scott Levine (“Dr.
Levine”). At all relevant times, Mr. Cherry was
incarcerated at the Pendleton Correctional Facility
(“Pendleton”). He is currently confined at the
New Castle Correctional Facility.
Cherry alleges in his amended complaint, filed on December
17, 2015, that Corizon has a policy and practice of forcing
injections when it is unwarranted and it does not properly
train its medical staff at Pendleton. He also alleges that
Dr. Levine ordered forced injections of antipsychotic
medication against his will because he was on a religious
fast. He alleges violations of his First and Eighth Amendment
rights and breach of contract as a third-party beneficiary.
defendants seek resolution of Mr. Cherry's claims through
the entry of summary judgment. Mr. Cherry has opposed the
motion, albeit he did so four and a half months after the
motion was filed and he submitted no evidentiary materials.
The Court has considered Mr. Cherry's opposition. The
defendants replied and the motion is ripe for resolution.
Summary Judgment Standard
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute about a material fact is
genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If no reasonable jury could find for the non-moving
party, then there is no “genuine” dispute.
Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).
basis of the pleadings and the portions of the expanded
record that comply with the requirements of Rule 56(c)(1) of
the Federal Rules of Civil Procedure, construed in a
manner most favorable to Mr. Cherry as the non-moving party,
the following facts are undisputed for purposes of the motion
for summary judgment:
Cherry has a history of bipolar disease, depression,
psychosis, and delusions. He is also HIV-positive. On April
27, 2015, he was transferred from the Marion County Jail to
the Reception Diagnostic Center. On May 15, 2015, Mr. Cherry
was transferred to Pendleton.
9, 2015, Dr. Levine, a psychiatrist at Pendleton, conducted a
chart update on Mr. Cherry's medications and mental
health status. At that time, Dr. Levine recommended
continuing Mr. Cherry's Celexa prescription as treatment
for depression. Mr. Cherry's records revealed that he had
previously taken Geodon, an antipsychotic medication, with a
May 9, 2015, stop date.
30, 2015, Mr. Cherry was placed in administrative segregation
for writing a threatening letter to a female guard. On July
2, 2015, he was seen by a counselor for segregation
monitoring. During the encounter, Mr. Cherry presented with
poor reasoning, impulse control, judgment and insight. In
August 2015, Mr. Cherry refused medications and medical care
including a recommended Hepatitis B vaccine and a blood draw
to evaluate his HIV infection.
September 4, 2015, Mr. Cherry saw a nurse in the facility
clinic for right flank pain. His treating physician, Dr. Paul
Talbot, was concerned that Mr. Cherry could be exhibiting
signs of liver complications from his HIV infection, so he
was sent to the emergency room at St. Vincent's Hospital
for evaluation of severe acute right upper quadrant abdominal
pain. At the time, it was noted that Mr. Cherry weighed 242
pounds. After a CT scan reflected no abnormalities related to
his complaints of abdominal pain, Mr. Cherry was discharged
from the emergency room. No further treatment was recommended
and Mr. Cherry did not complain further of abdominal pain.
September 8, 2015, a chart note entered by Susan Resch, RN,
reflected that Mr. Cherry stated he was going on a hunger
strike. It was also noted that Mr. Cherry had a history of
suicide attempts, he had been diagnosed as bipolar, and his
sister had committed suicide. Mr. Cherry was determined to be
a suicide risk.
September 8, 2015, Mr. Cherry was seen in the urgent care
unit at Pendleton by staff psychologist, Dr. Roger Perry, for
an initial Behavioral Health and Suicide Monitoring visit.
Dr. Perry reported Mr. Cherry was anxious, agitated, and
disheveled. His reasoning, judgment, and insight were poor.
His attitude was hopeless and uncooperative. Mr. Cherry spoke
rapidly about inept medical care, various miscarriages of the
legal system, an unfair trial, and unfair charges to his
inmate account. Mr. Cherry stated he had been refusing his
HIV medication because it made him sick. During the
encounter, Mr. Cherry denied suicidal ideation, but talked
about loneliness, hopelessness, and frustration. He stated
that he might starve himself in order to meet Christ's
record of fasting for forty days. His thought processes were
somewhat tangential, and his thought content revealed
paranoia, delusions, and phobias. Mr. Cherry was diagnosed as
symptomatic for chronic bipolar disorder and depression, with
exacerbation. It was noted that he had a past history of
self-harm. Dr. Perry recommended that Mr. Cherry be placed in
the Pendleton Hospital Restraint Unit (“HRU”) in
the high risk unit on close suicide observation. Dkt. 35-1,
at p. 5; dkt. 35-2, at p. 323-24.
September 10, 2015, Mr. Cherry was seen by Dr. Perry for a
suicide monitoring visit. Dr. Perry reported that Mr. Cherry
was uncooperative, paranoid, and appeared delusional. His
thought processes were incoherent, and showed loose
associations, as well as flight of ideas and perseveration.
He repeated his concerns over and over again. He showed a
flawed sense of logic and stated he feared government
entities and representatives were out to destroy him. Mr.
Cherry had refused seven meals to date, and pledged to
cleanse himself so as to be worthy of sacrificing his life so
things could be better for others. And though he denied
suicidal ideation or intent, Mr. Cherry did not appear to
understand the danger of his actions. Dkt. 35-1, at p. 5;
dkt. 35-2, at pp. 307-09.
September 10, 2015, Mr. Cherry began refusing all medical
care, including refusing to be weighed, give urine samples,
have his vital signs taken or blood drawn, and, at times,
even to talk to medical staff. He was regularly assessed by
nursing and medical staff as part of the suicide observation
protocol. Dkt. 31-5, at p. 5; dkt. 35-2, at pp. 13-14,
September 11, 2015, Mr. Cherry was seen by Dr. Perry who
reported that he continued to be unstable. He had missed ten
meals but insisted he was not on a hunger strike and was
instead experiencing a religious purification. Although Mr.
Cherry denied suicidal ideation, he seemed unaware that his
behavior of refusing all medications and meals could become
life-threatening. Dkt. 35-1, at p. 5.
September 14, 2015, Mr. Cherry was seen by Dr. Paul Talbot
for an unscheduled visit in response to his continued hunger
strike. Dr. Talbot noted that Mr. Cherry had been on a hunger
strike for 7-8 days with 21 or more missed meals. Though Mr.
Cherry had been drinking some water, a visual examination
revealed that his lips and mucus membranes were dry. He
refused all medical care, a nursing and medical assessment,
food, vital sign check, weight check, and urine or blood
tests. He would not sign refusal of treatment forms. He was
informed that continued refusal of food and medical treatment
could cause damage to his organs, including his brain. He was
advised to eat and allow medical testing. Mr. Cherry's
refusal of treatment form was signed by the physician, nurse,
and officer present. Dkt. 35-1, at p. 6.
September 15, 2015, Dr. Levine saw Mr. Cherry for a
medication management visit. He noted that, in addition to
his hunger strike, Mr. Cherry was now refusing hydration. Mr.
Cherry was minimizing the risks of his behavior, stating
“Jesus fasted for 40 days and 40 nights.” He
claimed his actions were in protest of multiple wrongs based
on beliefs he was not being protected from assault (for which
Internal Affairs found no supporting evidence), that medical
was doing venipuncture in order to manipulate him, and that
prison staff had stolen his legal work. Mr. Cherry
acknowledged a history of psychiatric care, but he continued
to refuse pharmacotherapy. During the encounter, Mr. Cherry
spoke loudly, excessively, and rapidly, with flight of ideas.
His reasoning, judgment, and insight were very poor. He was
unable to understand and could not agree to refrain from
harmful action. Mr. Cherry exhibited signs of delusional